President Trump Opens Protected Native American Land to Mining, Lawsuits Pending

In 1906, President Roosevelt signed the Antiquities Act, which created the first legal protections of American cultural and natural resources. In December 2016, President Obama, with the authority granted to him under the Antiquities Act, declared Bears Ears a National Monument. Proclamation 9558 conserved over 100,000 Native American cultural and archeological sites within Bears Ears, a 1.35-million-acre Monument in Utah, which encompasses various tribes’ sacred land. About a year after President Obama protected Bears Ears National Monument, the Trump Administration announced that it would seek to shrink the size of both Bears Ears and Grand Staircase-Escalante, another national monument in Utah. Just recently, the land formerly part of Bears Ears and Grand Staircase-Escalante became open to mining claims.

Following President Trump’s announcement in December, five Native American tribes and nations filed suit in the US District Court for DC against the President and other members of the Executive, including Secretary of the Interior Ryan Zinke and Secretary of Agriculture Sonny Perdue. Under the Antiquities Act President Obama protected these tribes’ land by creating the Bears Ears and Grand Staircase-Escalante National Monuments. Four other lawsuits have been filed by different groups. The Complaint alleges that President Trump is abusing his power under the Antiquities Act. The Complaint also alleges that the power to rescind or modify national monuments is reserved to Congress, through legislation. Removing protections from such culturally and naturally significant land not only violates the Antiquities Act, but these actions also conflict with the UN Declaration on the Rights of Indigenous Peoples.

President Trump and many Republican officials in Utah have thought that previous presidents, like President Obama, abused their authority by limiting industrial development and similar activity in the region. Some people highlight that the Antiquities Act requires presidents to protect important land while also “using the smallest amount of land possible.” Native American land can be protected through other ways and using other federal legislation, but Bears Ears and Grand Staircase-Escalante were protected by the Antiquities Act. Additionally, the Antiquities Act can protect non-Native American land. Regardless, the coalition of tribes cite federal property law from the 1970s, specifically the Federal Land Policy and Management Act of 1976, that only allows Congress to restrict or change national monument status.

The United States has supported the UN Declaration on the Rights of Indigenous Peoples and President Trump’s behavior and decisions regarding Native American land conflict directly with the purpose of the Declaration. Article 26, paragraph 3, explicitly says that States shall legally recognize and protect indigenous lands, territories, and resources, and that “[such] recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.” Article 29, paragraph 1, recognizes that “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.” Trump’s decision here happens to violate both the Antiquities Act and the UN Declaration.

President Trump acted without authority when he reduced the size of Bears Ears by 85% and Grand Staircase-Escalante by 46%. Trump’s actions violate the purpose and go outside the scope of the Antiquities Act, and through the Federal Land Policy and Management Act of 1976, only the Congress has the authority to reduce the size or change National Monument status. While the Declaration on the Rights of Indigenous Peoples is not legally binding, President Trump’s actions undermine serious land protections that the international community has accepted as essential to protecting Indigenous human rights. President Trump should repeal the Trump Proclamation and restore Bears Ears and Grand Staircase-Escalante.

Most registered voters in Utah appear to support the President’s move, with 51% surveyed saying that “they support Trump’s proclamation to toss out the larger Bears Ears monument in favor of two smaller designations.” The Trump administration is seeking to transfer the suits from Federal District court in DC to Federal District Court in Utah, which is likely because the administration seeks a more sympathetic jury in Utah, where more people support his decision. The courts have the power to prevent enforcement of the Proclamation. The courts have to uphold the law of the land and should find in favor of the Native American tribes and other groups who have sued. Using the Antiquities Act to reduce the size of two such culturally significant places sets a dangerous precedent that would lead to even more abuse of an already-marginalized group of people in America.

It took years for the Bears Ears coalition to lobby President Obama to declare their sacred land a National Monument. To walk back on that decision not only violates domestic law but goes against international legal norms and will eventually lead to further abuses of authority against Native Americans.